Unlocking US Business Opportunities: A Guide to Non-Immigrant Visa Options for Entrepreneurs
Flavia Santos Lloyd • July 6, 2023
Entrepreneurs and investors are key drivers of economic growth and job creation, and the United States has long been a destination of choice for those seeking to start or grow their businesses. However, navigating the U.S. immigration system can be complex and time-consuming. In this article, we will discuss the various non-immigrant visa options available to entrepreneurs and investors looking to enter the United States.
L-1 Intracompany Transferee Visa
The L-1 Intracompany Transferee Visa is a visa category specifically designed for executives, managers, and employees possessing specialized knowledge who are relocating from a foreign corporation to a U.S. affiliate. The eligibility for an L-1 visa requires the foreign corporation and the U.S. affiliate to be connected through common ownership or control. Transferees must also demonstrate that they have been employed abroad for at least 12 months in an executive, managerial, and specialized knowledge capacity.
An employee being relocated might also be heading to the United States to set up an office if the company doesn't have an existing presence there. The L-1 visa isn't the best choice for someone in the early stages of launching a company, particularly if the business is being established in the United States. However, it could be a viable option for an entrepreneur who has, for instance, kick-started a business outside of the United States which will maintain its operations, or if the entrepreneur merges operations with a foreign company where they have previously been employed.
E-1 Treaty Trader Visa
E-1 Treaty Trader
Visa category is designated for nationals of countries with which the U.S. maintains treaties of commerce and navigation. An entrepreneur qualifying for an E-1 visa must be entering the U.S. to carry out substantial trade, including trade in services or technology, principally between the U.S. and the treaty country.
Trade, as defined, must involve an exchange of goods, money, or services. Virtually any goods or services can meet this requirement. The transaction flow between the two countries should be verifiable, typically done through documents such as purchase orders, wire transfers, or bills of lading.
To determine the substantiality of the trade, the Department of State (DOS) will assess the frequency and monetary value of the transactions. More regular, high-value transactions are given greater consideration. However, smaller businesses can also qualify if they can demonstrate that the transaction volume is sufficient to support the treaty trader(s) and their family.
The DOS applies a general rule stating that at least 50% of the trade must be between the United States and the treaty country. Thus, applicants should provide evidence of their total business transactions and proof that a minimum of 50% is between the two countries. The remaining trade can be domestic or international with other countries. Even if a US-based subsidiary meets the 50% requirement, the parent company abroad does not necessarily need to conduct 50% of its trade with the United States.
Due to the requirement of demonstrating substantial trade history, it may be challenging for early-stage startups to qualify for an E-1. This visa type is more frequently used by established entrepreneurs with a foreign business and a US customer base, who wish to continue their operations in the US. In some instances, foreign firms aiming to penetrate the US market may use an E-1 for a newly established US subsidiary and start moving inventory for sale in the US. In this case, all trade may be between the foreign parent and US subsidiary, thereby comfortably meeting the 50% threshold.
E-2 Treaty Investor Visa
E-2 Treaty Investor
Visa is for citizens of countries that have a treaty of commerce and navigation with the United States. To qualify for an E-2 visa, an entrepreneur must be coming to the United States to develop and direct the operations of a business in which they have invested, or are in the process of investing, a substantial amount of capital.
In the classic example of an E-2 investment, the E-2 investor transfers their personal wealth from a foreign bank account into the bank account of their new US enterprise, thereby establishing their investment. However, the Foreign Affairs Manual (FAM) provides some flexibility, enabling the officer to consider other "arrangements" as an "investment."
For those not intending to finance the E-2 enterprise entirely or partially with their personal funds, the nationality of other investors needs to be considered to ensure that at least 50% of the company shares remain in the hands of nationals from the E-2 treaty country. For instance, suppose one co-founder is American and the other is French, and they each own 50% of the company, contributing $40,000 from their personal wealth as initial capital for the company. To raise additional funds, they each decide to swap 7% of their equity (14% in total) with an angel investor for $150,000. If the angel investor is also French, then 57% of the company is now owned by French nationals; but if the angel is a U.S. citizen, then only 43% of the company is French, and it no longer qualifies as a French company for E-2 purposes. In this scenario, the founders will need to switch to another visa type before the equity exchange, as their E-2 will no longer be valid when the company loses its treaty nationality.
A central concern for every E-2 application is the "source of funds." The applicant must clearly demonstrate the lawful origin of their investment funds, along with evidence of ownership and control. Moreover, to be classified as an E-2 investment, the invested assets or funds must be "at risk." This means that if the business fails, the investment is proportionately lost. Though the investment capital may be loan-based, the loan cannot be secured against the assets of the E-2 enterprise. Personal loans, which may be secured by personal assets like a second mortgage or unsecured loans typically obtained from family, friends, or business partners, are permissible.
O-1 Visa
The O-1 visa category is a unique and advantageous option for startup entrepreneurs and business owners who have demonstrated exceptional prowess in their field. The O-1A visa variant specifically caters to individuals exhibiting extraordinary ability in the sciences, education, business, or athletics. This makes it a viable avenue for those looking to establish or expand their business ventures in the US without the necessity of maintaining an overseas office or providing evidence of trade and investment, as required by L-1 and E-1/E-2 visas.
Unlike the more traditional visa categories, the O-1A visa shifts the emphasis onto the beneficiary's individual achievements within their domain. It demands that the beneficiary meets at least three of the eight regulatory criteria set forth by the US Immigration Services. These criteria form a comprehensive measure of the individual's accomplishments, recognition, and overall standing in their respective field.
For instance, if the beneficiary has been the recipient of nationally or internationally recognized prizes or awards, it highlights their excellence and industry-leading competence. Alternatively, membership in prestigious associations which require commendable achievements as judged by recognized experts can also serve as evidence of their extraordinary ability.
The O-1 visa offers an alternate route that places an emphasis on individual expertise and recognition in the applicant's field, rather than specific trade or investment quotas. This visa is especially beneficial for those who have demonstrated exceptional capability and achieved a high degree of success in their respective business domain.
Overall, the O-1A visa offers an effective immigration route for extraordinarily talented entrepreneurs and business owners. By meeting and surpassing the eligibility criteria, they can gain access to the vast opportunities in the US market, thereby furthering their business ventures and contributing to the economic growth and diversification of the US.
Conclusion
For foreign entrepreneurs and investors, several U.S. immigration options are available: the E-1 treaty trader visa, the E-2 treaty investor visa, the L-1 intra-company transferee visa, and the O-1 visa for individuals with extraordinary ability. While E-1 and E-2 visas center on trade and investment respectively, the L-1 is for managers or executives transferring to a U.S. branch of their company, and the O-1 visa acknowledges individual expertise and accomplishments. Each visa has unique prerequisites, necessitating the guidance of an immigration attorney for optimal strategy selection. Correct navigation of these options opens vast U.S. entrepreneurial opportunities and resources.
This blog is not intended to be legal advice and nothing here should be construed as establishing an attorney client relationship. Please schedule a consultation with an immigration attorney before acting on any information read here.
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If you are an elite athlete, the dream of competing and living in the United States often begins with a temporary visa, like a P-1 or an O-1A, based on an employment contract with a team or a schedule of professional competitions you will participate in. However, if you are able to truly excel and reach the top echelon of competitors in your sport worldwide, you may eventually be able to qualify for an EB-1A employment-based Green Card that grants you lawful permanent residence in the U.S. The EB-1A is highly coveted because it doesn’t require a U.S. employer to sponsor you; you can self-petition based entirely on your own merit. However, the barrier to entry is high. You must either prove a major, one-time achievement (like an Olympic medal or a World Cup title) or satisfy at least three out of ten specific regulatory criteria. If you are a forward-thinking athlete currently in the prime of your career, now is the time to start building your EB-1A playbook. Here is a breakdown of all ten criteria from a professional sports perspective, along with actionable tips to bolster your eligibility for the future. The 10 EB-1A Criteria: An Athlete’s Playbook 1. Nationally or Internationally Recognized Prizes or Awards This criterion looks for evidence of excellence in your sport. For athletes, this means trophies, medals, or individual accolades. What counts: League MVP awards, "Best Newcomer" titles, National Championship medals, or selection to an All-Star team. Regional or local club-level awards generally won't cut it. How to maximize your chances: Never throw away a program booklet, medal certificate, or official league announcement. If you win an award, request a formal letter from the league or federation confirming the criteria for the award, how many athletes competed for it, and why you stood out. You are already striving for excellence in your career, to maximize the impact of these awards on your potential EB-1A eligibility, be prepared to document them as fully as possible. 2. Membership in Elite Associations USCIS looks for memberships in organizations that require outstanding achievements of their members, as judged by recognized national or international experts. What counts: Selection to a National Team, an invitation-only elite training pool, or membership in a prestigious international sports federation with strict performance entry barriers. A basic club membership, or membership in a players’ union for all players in your league is unlikely to move the needle here. How to maximize your chances: Actively pursue national team call-ups or qualify for top-tier athletic federations. Keep copies of the official selection criteria for these organizations to prove that entry is based strictly on elite athletic performance, not just paying a membership fee. 3. Published Material About You in Major Media This involves press coverage detailing your athletic career, your achievements, and your impact on the sport. What counts: Feature articles, profile pieces, and match reports in major media outlets (e.g., ESPN, Sky Sports, major national newspapers, or highly regarded websites that cater to your specific sport). How to maximize your chances: Don't shy away from the press. When journalists ask for interviews, take them. Make sure that video interviews or other video-based features include a written text element as well. Crucially, maintain a digital press portfolio . Save screenshots, URLs, and physical copies of print articles. Track the circulation or web traffic metrics of the publications featuring you to prove they qualify as "major media" - they will need to average at least 3,000 viewers or subscribers per month. 4. Participation as a Judge of the Work of Others This criterion requires you to have evaluated the performance of other athletes or professionals in your field. What counts: Serving as a licensed referee or umpire at high-level competitions, acting as a technical judge at a national tryout, or being invited to sit on a selection panel for a prestigious youth draft combine. How to maximize your chances: As you gain seniority in your sport, accept invitations to judge. Offer to serve as a panelist or evaluator for academy tryouts, state tournaments, or specialized sports combines. Ensure your participation is documented with official invitations and judging schedules. 5. Original Contributions of Major Significance to the Sport This means you have introduced something to your sport that has shifted the way the game is played, trained, or analyzed. What counts: Developing a brand-new training methodology or tactical system that is widely adopted by other clubs, setting a long-standing national or international record, or introducing a new technique to your sport such as a new grappling hold in combat sports or a new putting technique in golf. How to maximize your chances: If you innovate a specific technique or coaching program, document its widespread impact. Secure testimonial letters from independent coaches, sporting directors, and analysts testifying to how your unique contribution has materially advanced the sport. 6. Authorship of Scholarly Articles This requires writing deeply technical or academic pieces for major professional or trade publications. What counts: Publishing tactical breakdowns in recognized coaching journals, writing a column for a sports science publication, or authoring an authoritative textbook on modern athletic training. How to maximize your chances: Use the off-season or injury downtime to co-author articles with sports scientists or write deep-dive tactical pieces for established athletic journals or coaching magazines. The experience and insight of an elite athlete is a valuable academic resource; you don’t need to be an accomplished scholar yourself to contribute to academic work. 7. Display of Work at Artistic Exhibitions or Showcases While primarily designed for painters, sculptors, and actors, this can occasionally be adapted for athletes under very specific circumstances. What counts: Having your athletic gear, memorabilia, or historical achievements featured in a major sports museum, or being a primary feature in an athletic showcase with a large audience such as participating in a testimonial match for a retiring superstar, or a skateboarding demo attached to a popular festival. 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When you leave a club or team, secure a letter from the head coach, general manager, or sporting director detailing exactly how your specific presence and leadership directly caused the organization's success or ranking surge. 9. High Salary or Significantly High Remuneration This requires proving that your compensation is substantially higher than what the average athlete in your sport and country earns. What counts: Playing contracts, performance bonuses, endorsement deals, and prize money that place you in the top tier of earners in your league or nation. How to maximize your chances: Keep meticulous financial records. Save all player contracts, prize money receipts, and tax returns. Work with your immigration attorney to gather objective labor data (like national statistics or league averages) to clearly demonstrate that your income dwarfs the baseline average for your profession. 10. Commercial Successes in the Performing Arts For athletes, this criterion is increasingly satisfied through the modern commercialization of sports, specifically focusing on box office draws and merchandise. What counts: Major pay-per-view (PPV) draws in combat sports or extreme sports, ticket sales or attendance spikes directly attributed to your presence, or substantial jersey/merchandise sales carrying your name. How to maximize your chances: Work closely with your agency, club, or promotion to track your commercial impact. Request data regarding streaming viewership peaks during your matches, box office revenue for events you headlined, or official merchandise sales reports. As with each criteria, the more objective support materials you can provide, the stronger your argument becomes. Summary: Building Your EB-1A Timeline The EB-1A Green Card requires extraordinary ability by its very name; planning and preparation alone cannot manifest eligibility if you are not an outstanding athlete in your chosen sport. But for those high achieving athletes who may wish to pursue this desirable pathway to lawful permanent residency, being proactive early in your career can make all the difference. By understanding these criteria today, you can make intentional career choices that pay off down the road. Treat your visa strategy like your training regimen: consistency, documentation, and aiming for the highest platforms will ultimately secure your win. If you think you may qualify for an EB-1A visa on the basis of your athletic talent, please contact our office and we would be happy to help guide you through this complex but rewarding process.
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